A new independent study published by the University of Exeter has shown that a staggering 45% of those surveyed in England and Wales were completely unaware of the options available to them to help dissolve their marriage out of court.
The Mapping Paths to Family Justice report was a result of a three year academic research project and follows radical changes to family law with a drive to keep more divorce cases out of the courts and the removal of the availability of legal aid, except for cases involving domestic violence and for mediation.
Sarah McCarthy, family law specialist at Linder Myers Solicitors in Lytham commented: “We are all dealing with the fallout of the Family Justice System’s radical changes, and not least the withdrawal of public funding for most divorce cases. The findings have shown a real lack of awareness of the number of out of court options available to separating couples including collaborative law, mediation and solicitors negotiations.
“The breakdown of a relationship or marriage is often a highly emotionally charged time and sadly, the report has proved that misconceptions still exist that appointing a solicitor to help resolve matters automatically means that the case will go to court which is not the case. As family law increasingly moves away from the traditional, and adversarial, approach to divorce proceedings, couples faced with this situation now have more options than ever before.
The Mapping Paths for Family Justice report found that 44% of the couples surveyed were aware of mediation, 32% of Solicitor Negotiations and only 14% were aware of Collaborative Law, a relatively new method of managing divorce in a more conciliatory fashion.
McCarthy continued: “The traditional, and often hostile, approach to divorce can often draw out proceedings and turn into a bitter battle which is entirely avoidable. Less contentious approaches to these situations with the help of the right legal specialists are particularly important for separating couples with children as a long term relationship between the parties will continue after the romantic relationship or marriage has been dissolved.
“Choosing a less adversarial method will not only help to avoid matters reaching the courts, but also gives couples a chance to maintain a healthy relationship with their ex-partner afterwards and save their children from the emotional scarring often left behind by other divorce methods.”
Despite the growing availability of less contentious divorce methods, the UK still operates a fault based divorce system. The Law Commission has previously attempted to change the law under the Family Law Act 1996 with the aim of introducing the no fault divorce over a ‘process of time’ but this was never implemented and instead repealed.
Since 1975 Australia, in contrast, has allowed for no fault divorces following a 12 month period of separation but an element of ‘fault’ in children and financial matters is maintained. Canada has a similar 12 month separation period with no requirement for fault to be proved and several European countries including Sweden and Spain also operating a ‘faultless’ divorce system.
The report did not cover arbitration, another out of court method which focuses primarily on resolving disputes over financial matters out of court.